Bishop and Australian Postal Corporation (Compensation) [2017] AATA 1807 (20 October 2017)
Division:GENERAL DIVISION
File Numbers: 2014/1930, 2015/2437, 2015/2444, 2016/5466
Re:Paul Bishop
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:20 October 2017
Place:Melbourne
The Tribunal sets aside the decision identified by application number 2014/1930 and substitutes its decision that the injury to the right shoulder is causally related to employment and liability is attracted under s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988.
The reviewable decisions of the other three applications are affirmed.
.................[sgd]......................................................
Miss E A Shanahan, Member
COMPENSATION – bilateral shoulder injuries – cervical spine pathology – secondary psychiatric symptoms or disorder – questions of liability and compensation – left shoulder claims accepted by consent in the course of the hearing and claim for household assistance under s 29 withdrawn – claims reduced from nine to four – decision in relation to right shoulder injury set aside – decisions relating to secondary psychological disorder, cervical spine pathology and surgical treatment for the latter as denied by respondent, affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Company Pty Ltd v Semelitch (1964) 110 CLR 626
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth of Australia v Keith Colville Smith (1989) 18 ALD 224
Comcare v Canute (2005) 148 FCR 232
Comcare v Paul Mooi (1996) FCA 580
Canute v Comcare [2006] HCA 47
Comcare v Power (2015) 238 FCR 187Secondary Materials
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006REASONS FOR DECISION
Miss E A Shanahan, Member
20 October 2017
1.Between 2014 and 2016 Mr Bishop lodged nine claims for compensation pursuant to s 14, s 16, s 19 and s 29 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). In summary, these allegedly arose from work caused rotator cuff type injuries, first to the left shoulder in September 2011, and then to the right shoulder in 2013. The respondent accepted liability for the left shoulder injury but disputed the claims for payment under s 19 of the SRC Act and the claim for the cost of repeat surgical intervention.
2.Mr Bishop lodged his applications for review by the Administrative Appeals Tribunal separately, and all nine claims were listed for de novo hearing over a period of five days, from 22 to 26 May 2017.
3.Mr Mark Carey of counsel, instructed by Maurice Blackburn Lawyers, represented Mr Bishop. Mr Michael Snell of counsel, instructed by Sparke Helmore Lawyers, represented the Australian Postal Corporation. The respondent provided the T‑documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), which was assigned the exhibit number ‘R1’. Both parties tendered further documentation and a list of these exhibits is appended to this decision.
4.Mr Paul Bishop, Mr Russell Miller, Mr Patrick Lo, Mr Michael Khan, and Mr Ronald Haig gave evidence in…
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- Case
- [2017] AATA 1807
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether Mr Bishop’s right shoulder pathology constituted an injury arising out of or in the course of his employment, and whether his claims for neck pain and a psychiatric disorder were similarly compensable. Specifically, the Tribunal had to determine if the duties performed by Mr Bishop, including the manual lifting of large tyres, contributed significantly to his right shoulder condition, and if his neck and psychiatric claims were supported by sufficient evidence to establish a work-related injury or aggravation.
The Tribunal found that Mr Bishop’s right shoulder pathology was an injury arising out of his employment, based on evidence that he used his right shoulder to lift after sustaining a left shoulder injury. This conclusion was supported by medical evidence indicating his right shoulder was normal in 2011 but abnormal by 2013, with investigations revealing rotator cuff injuries and bursitis. Regarding the neck injury claim, the Tribunal rejected it due to conflicting medical evidence and the lack of definitive diagnostic investigations, such as nerve conduction studies, which were recommended by several medical professionals. The claim for a psychiatric disorder was also rejected, with the Tribunal finding the evidence suggested an anger problem rather than a diagnosed psychiatric disorder, and noting no period of incapacity attributable to such a disorder.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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